PETITION FOR REHEARING AND REHEARING EN BANC · McGahee v. Ala. Dep’t of Corrs., 560 F.3d 1252 (11th Cir. 2009) Sweet v. Sec’y, Dep’t of Corrs., 467 F.3d 1311 (11th Cir. 2006)

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 14-10681 CAPITAL CASE

MARION WILSON, JR.,

Petitioner-Appellant,

v.

WARDEN Georgia Diagnostic Prison,

Respondent-Appellee.

On Appeal From the United States District Court for the Middle District of Georgia, Macon Division

PETITION FOR REHEARING AND REHEARING EN BANC

David J. Harth David E. Jones PERKINS COIE LLP 1 East Main Street, Suite 201 Madison, WI 53703 Telephone: 608-663-7460 Facsimile: 608-663-7499

Brian Kammer (Georgia Bar No. 406322) GEORGIA RESOURCE CENTER 303 Elizabeth Street, NE Atlanta, Georgia 30307 Telephone: 404-222-9202 Facsimile: 404-222-9212 ATTORNEYS FOR APPELLANT MARION WILSON, JR.

Case: 14-10681 Date Filed: 01/05/2015 Page: 1 of 51

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IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

MARION WILSON, JR., ) Petitioner-Appellant ) ) v. ) No. 14-10681 ) WARDEN, ) Georgia Diagnostic Prison, ) Respondent-Appellee )

CERTIFICATE OF INTERESTED PERSONS

Counsel hereby certifies that the following have an interest in the outcome

of this case:

Bina, Gabrielle E., Counsel for Petitioner-Appellant

Bradley, Steven, Trial Prosecutor

Bright, Fred, Trial Prosecutor

Burton, Beth, Deputy Attorney General, Counsel for Respondent-Appellee Carr, Jon Philip, Trial Counsel for Appellant

Chatman, Bruce, Warden, Georgia Diagnostic Prison

George, Hon. Hulane, Trial Judge, Superior Court of Baldwin County Georgia Resource Center


ii

Graham, Sabrina, Counsel for Respondent-Appellee

Greb, Emily J., Counsel for Petitioner-Appellant

Helms, Christopher, State Habeas Counsel for Respondent-Appellee

Humphrey, Carl, former Warden, Georgia Diagnostic Prison

Jones, David E., Counsel for Petitioner-Appellant

Kammer, Brian S., Counsel for Petitioner-Appellant

Koop, Lissa R., Counsel for Petitioner-Appellant

Lukemire, Hon. Edward D., State Habeas Judge

Nero, Autumn N., Counsel for Petitioner-Appellant

O’Donnell, Thomas J., Jr., Trial Counsel for Appellant

Olens, Samuel S., Georgia Attorney General

Parks, Donovan Cory, Deceased

Pekarek Krohn, David R., Counsel for Petitioner-Appellant

Perkins Coie LLP

Prior, Hon. William A., Jr., Trial Judge, Superior Court of Baldwin County Setters, James M., Trial Counsel for Appellant

Taylor, John, State Habeas Counsel for Appellee

Treadwell, Hon. Marc T., United States District Court for the Middle District of Georgia, Federal Habeas Judge Wilson, Marion, Jr., Appellant



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CERTIFICATION OF COUNSEL1

We express a belief, based on a reasoned and studied professional judgment,

that the panel decision is contrary to the following decisions of the Supreme Court

of the United States and the precedents of this Circuit and that consideration by the

full court is necessary to secure and maintain uniformity of decisions in this Court:

Johnson v. Williams, 133 S. Ct. 1088 (2013)

Harrington v. Richter, 131 S. Ct. 770 (2011)

Sears v. Upton, 561 U.S. 945 (2010)

Ylst v. Nunnemaker, 501 U.S. 797 (1991)

Price v. Allen, 679 F.3d 1315 (11th Cir. 2012)

Adkins v. Warden, Holeman CF, 710 F.3d 1241 (11th Cir. 2013)

Madison v. Comm’r, Ala. Dep’t of Corrs., 677 F.3d 1333 (11th Cir. 2012)

Powell v. Allen, 602 F.3d 1263 (11th Cir. 2010)

McGahee v. Ala. Dep’t of Corrs., 560 F.3d 1252 (11th Cir. 2009)

Sweet v. Sec’y, Dep’t of Corrs., 467 F.3d 1311 (11th Cir. 2006)

We further express a belief, based on a reasoned and studied professional

judgment, that this appeal involves one or more questions of exceptional

importance:

1 See 11th Cir. R. 35-5(c).



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TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS ........................................................ i

CERTIFICATION OF COUNSEL .......................................................................... iv

TABLE OF CITATIONS ...................................................................................... vii

STATEMENT OF THE ISSUES MERITING REHEARING OR EN BANC CONSIDERATION .................................................................................................. 1

STATEMENT OF THE COURSE OF PROCEEDINGS AND DISPOSITION OF THE CASE ................................................................................ 1

STATEMENT OF FACTS ....................................................................................... 3

ARGUMENT AND CITATION OF AUTHORITY ................................................ 6

I. The Panel Opinion Is Contrary to Precedent of the Supreme Court of the United States .................................................................... 7

II. The Panel’s Conclusion That Mitigation Testimony of Teachers and Social Service Workers Was a Double-Edged Sword Is Not Reasonable .......................................................................................... 12

CONCLUSION ....................................................................................................... 15


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TABLE OF CITATIONS

CASES

Adkins v. Warden, Holeman CF, 710 F.3d 1241 (11th Cir. 2013) ........................................................................... iv

Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316 (11th Cir. 2013) .......................................................................... 12

Harrington v. Richter, 131 S. Ct. 770 (2011) ............................................................................... iv, 10, 11

Johnson v. Williams, 133 S. Ct. 1088 (2013) .................................................................................passim

Kennedy v. Lockyer, 379 F.3d 1041 (9th Cir. 2004) .............................................................................. 9

Madison v. Comm’r, Ala. Dep’t of Corrs., 677 F.3d 1333 (11th Cir. 2012) ........................................................................... iv

McGahee v. Ala. Dep’t of Corrs., 560 F.3d 1252 (11th Cir. 2009) ........................................................................... iv

Porter v. McCollum, 558 U.S. 30 (2009) .............................................................................................. 13

Powell v. Allen, 602 F.3d 1263 (11th Cir. 2010) ........................................................................... iv

Price v. Allen, 679 F.3d 1315 (11th Cir. 2012) ....................................................................... iv, v

Sears v. Upton, 561 U.S. 945 (2010) ................................................................................ iv, 10, 13

Strickland v. Washington, 466 U.S. 668 (1984) .............................................................................................. 3

Sweet v. Sec’y, Dep’t of Corrs., 467 F.3d 1311 (11th Cir. 2006) ............................................................................. i


viii

Wiggins v. Smith, 539 U.S. 510 (2003) .............................................................................................. 3

Williams v. Cavazos, 646 F.3d 626 (9th Cir. 2011) ................................................................................ 9

Wilson v. State, 525 S.E.2d 339 (Ga. 1999) ................................................................................... 1

Wong v. Belmontes, 558 U.S. 15 (2009) .............................................................................................. 12

Ylst v. Nunnemaker, 501 U.S. 797 (1991) .....................................................................................passim

STATUTES

Antiterrorism and Effective Death Penalty Act of 1996 ..................................... 8, 10


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STATEMENT OF THE ISSUES MERITING REHEARING OR EN BANC CONSIDERATION

1. Is the panel’s opinion, which did not look through the Supreme Court of

Georgia’s summary denial of Wilson’s certificate of probable cause to the last

reasoned state-court decision in determining the state court’s reasoning in not

finding ineffective assistance of counsel, contrary to Johnson v. Williams, 133 S.

Ct. 1088 (2013) and Ylst v. Nunnemaker, 501 U.S. 797 (1991)?

2. Was it improper for the panel to dismiss the proffered mitigation evidence as

a “double-edged sword” without consideration of the context in which it would be

presented and where the cited negative evidence was already before the jury?

STATEMENT OF THE COURSE OF PROCEEDINGS AND DISPOSITION OF THE CASE

On November 5, 1997, Wilson was convicted in the Superior Court of

Baldwin County, Georgia of malice murder of Donovan Parks, felony murder, and

a number of other charges. He was sentenced to death for malice murder and

received various sentences for the other charges. The felony murder conviction

was vacated by operation of law. The Supreme Court of Georgia affirmed on direct

appeal, Wilson v. State, 525 S.E.2d 339 (Ga. 1999).

After a petition for writ of certiorari in the U.S. Supreme Court was denied,

Wilson sought state post-conviction relief. On February 22-23, 2005, the Superior

Court of Butts County, Georgia (“Superior Court”) held an evidentiary hearing


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primarily devoted to Wilson’s ineffective assistance of counsel claims in the

penalty phase preparation and presentation. Wilson presented the testimony of his

trial counsel, law enforcement officers, family members, teachers, social services

workers, and others. Respondent-Appellee presented documentary materials and

live testimony of two witnesses. In a December 1, 2008 order, the Superior Court

denied the petition. Doc.18-4. The Supreme Court of Georgia, in a one-sentence

order, summarily denied Wilson’s application for certificate of probable cause to

appeal on May 3, 2010. Doc.18-19. Wilson thereafter petitioned the U.S.

Supreme Court for a writ of certiorari, which was denied. Doc.18-17.

On December 17, 2010, Wilson filed his federal habeas petition in the

district court. Doc.1. The district court denied the petition and granted a

certificate of appealability on Wilson’s claim of ineffective assistance of counsel

during the penalty phase. Doc.51 at 108-09. Wilson appealed. Doc.57.2 After

briefing was complete, a panel of this Court heard oral argument on December 2,

2014. On December 15, 2014, the panel issued an opinion affirming the district

court, stating that “the one-line decision of the Supreme Court of Georgia denying

Wilson’s certificate of probable cause is the relevant state-court decision for our

review because it is the final decision on the merits.” Opinion at 13 (internal

quotation marks omitted). In determining whether the state court’s decision was an

2 Wilson also filed a motion seeking to expand the certificate of appealability, which this Court denied. Doc.59.


3

unreasonable application of Wiggins v. Smith, 539 U.S. 510 (2003), and Strickland

v. Washington, 466 U.S. 668 (1984), the panel opinion repeatedly referred to what

the “Supreme Court of Georgia could have reasonably concluded” by its one-line

decision. Opinion at 14, 16, 17. In reviewing the mitigation evidence, the panel

found that the Supreme Court of Georgia could have reasonably concluded that the

new evidence proffered by Wilson in his state evidentiary hearing would be a

“double-edged sword,” having a damaging effect on the jury’s view of Wilson that

would have undercut any mitigation value. Id. at 14-15. The panel summed up its

reasoning by stating the “Supreme Court of Georgia could have looked at the

overall mix of evidence, aggravating and mitigating, old and new, and reasonably

determined that a jury would have still sentenced Wilson to death.” Id. at 18.

STATEMENT OF FACTS

The evidence presented by habeas counsel showed that Wilson was able to

overcome his deplorable upbringing when given proper structure, attention, and

supervision, but that such structure was consistently snatched away from him. For

example, there was detailed evidence and testimony that:

• During Wilson’s childhood, including when Wilson was an infant, Wilson

and his mother, Charlene Cox, lived in a series of squalid houses, some with no

water, electricity, or heat. Doc.12-7 at 35-36; Doc.12-10 at 71, 85, 91. One

house had rotten food and garbage littered on the floor and “liter soda bottles


4

filled with urine lined up all around the walls of their place.” Doc.12-11 at 7;

Doc 12-10 at 72. Another had dog feces on the floor. Doc.12-7 at 44-45.

• Wilson and Cox lived with a series of Cox’s boyfriends, who were

physically abusive to Cox and Wilson. Doc.12-7 at 43, 50; Doc.12-10 at 65-66,

76, 91, 93, 96; Doc.12-11 at 6-8. Wilson reported this to the Department of

Family and Children Services (“DFCS”). Doc.12-16 at 12 (“[Child] says

boyfriend . . . had hit him”). These men also drank excessively, abused drugs,

and exhibited sexual behavior in Wilson’s presence. Doc. 12-10 at 63, 77, 94.

• Wilson thrived when living in a nurturing environment provided by his aunt,

Evelyn Gibbs. Doc.12-10 at 80-81, 88; Doc.12-11 at 4. But just as Wilson

seemed to be on a healthy trajectory, Cox moved him out. Doc.12-10 at 80-82.

• Wilson also thrived at the Georgia Youth Development Center (“YDC”).

Because of the promise he showed at the YDC, he was released early. Doc.12-

8 at 7-9. But in violation of state law, he was unsupervised during his release

for over a year, and the employee who failed to assign the case was

reprimanded. Id. at 9-10, 13. Because Wilson was unsupervised, no one took

notice of his difficulties (e.g., driving without a license, getting into scuffles),

and his community placement was not revoked, as it should have been. Id.

• Teachers remembered Wilson as having potential that went unrealized

because of his appalling home life. One teacher remembered Wilson as “a child


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who needed a lot of love and attention” and who was “starving for some loving

care in his life.” Doc.12-9 at 8. Another believed “if Marion had had better

early home life circumstances and had been afforded appropriate treatment,

attention, guidance, supervision and discipline in his early years, there is a good

chance that Marion would not have fallen onto the wrong path, nor failed in his

struggle to keep his life from spinning out of control.” Id. at 41.

• Wilson attended college at Georgia Military College, where he wrote an

essay acknowledging that he had always been “in and out of trouble,” but that

he had “finally found the determination to put [his] brain to good use.” Id. at

23. He wrote that “[n]ow that I’ve found out that I can learn, I’m eager to learn

all that I can.” Id. One of his teachers testified that “[i]n my interaction with

Marion, I saw someone who was struggling to break away from his past and

who had the real potential to do so. I saw a side of Marion Wilson that was

tender and good, despite his harsh upbringing and criminal past.” Id. at 21.

While all of these facts were readily available to trial counsel, they failed to put

forward any credible mitigation theory and instead argued only that the jury’s

residual doubt regarding Wilson’s involvement in the crime should prevent them

from imposing the death penalty.


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ARGUMENT AND CITATION OF AUTHORITY

The panel opinion suffers from two problems that compel an en banc

rehearing. First, in considering what the Supreme Court of Georgia could have

reasonably concluded instead of what the Superior Court actually concluded

regarding Wilson’s claim, the panel issued an opinion contrary to Ylst v.

Nunnemaker, 501 U.S. 797 (1991) and Johnson v. Williams, 133 S. Ct. 1088

(2013). Those cases make clear that it must be determined whether the last

reasoned state-court decision—and not a later one-line summary denial—was an

unreasonable application of clearly established federal law.

Second, the panel erred by not considering the context in which the

mitigation evidence would be presented to the jury. In dismissing much of the

mitigation evidence, the panel wrongly found that the mitigating value would be

undercut by further revelations about Wilson’s problematic childhood. But that

misses the context within which that evidence would be presented by competent

counsel and fails to acknowledge that damaging evidence from Wilson’s childhood

was already in evidence. The mitigation evidence tells a consistent story that when

given the proper structure, Wilson was able to overcome his upbringing, but that

structure was consistently taken from him.


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I. The Panel Opinion Is Contrary to Precedent of the Supreme Court of the United States

Instead of considering whether the decision of the Superior Court was an

unreasonable application of federal law, the panel considered whether the Georgia

Supreme Court, based on a one-line decision, could have reasonably concluded

that the failure to present mitigation evidence did not prejudice Wilson’s defense.

This approach is contrary to U.S. Supreme Court precedent, which requires that in

reviewing whether state court decisions are unreasonable applications of clearly

established federal law, the decision to consider is the “last reasoned state-court

decision.” Johnson, 133 S. Ct. at 1094 n.1; Ylst, 501 U.S. at 804.

Ylst v. Nunnemaker addressed whether an unexplained order could be

considered a decision on the merits, to be considered in a later federal habeas

proceeding. 501 U.S. at 801. In that case, the California Court of Appeal had

affirmed the conviction of Nunnemaker, rejecting a Miranda claim because of a

state procedural bar. Id. at 799. A series of petitions for collateral relief were then

filed in each level of California state court, each summarily denied without any

explanation. Id. at 800. Nunnemaker then filed a petition for habeas relief,

including his Miranda claim, in federal district court. Id. The district court found

that federal review of the Miranda claim was barred because of the state

procedural default. Id. The Ninth Circuit reversed because the decision of the

California Supreme Court did not “clearly and expressly” rely on the state


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procedural default. Id. at 801.

The Supreme Court reversed the Ninth Circuit, finding the unexplained

decision by the California Supreme Court was not a decision on the merits, which

would have lifted the state procedural bar. Id. at 802, 806. The Court noted that

because members of a court may not agree on its rationale “the basis of [an

unexplained] decision is not merely undiscoverable but nonexistent.” Id. at 803.

The Court instead looked to “the last explained state-court judgment . . . .” Id. at

803-05 (emphasis in original). The Court then reviewed the initial denial of the

Miranda claim by the California Court of Appeal on direct review, “look[ing]

through the subsequent unexplained denials . . . .” Id. at 806. Thus, the Court

recognized that when reviewing a state court decision, it is proper to consider the

last reasoned decision, not simply the last state court judgment.

In Johnson v. Williams, the Supreme Court made clear that Ylst applied not

only to state procedural default, but to habeas review of state court decisions

generally. 133 S. Ct at 1091, 1094 n.1. In Johnson, the issue was what level of

deference to give to the state court opinion under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). Id. at 1091. Williams, the petitioner in

Johnson, was the getaway driver for a robbery that resulted in the fatal shooting of

the store’s owner. Id. at 1092. During jury deliberations, the trial judge dismissed

a juror who may have been unwilling to apply the felony-murder rule. Id. With an


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alternate juror substituted in, the jury convicted Williams. Id. Williams appealed

her conviction, arguing violations of both the Sixth Amendment and state law. Id.

at 1093. The California Court of Appeal affirmed Williams’ conviction, though it

“never expressly acknowledged that it was deciding a Sixth Amendment issue.”

The California Supreme Court denied relief in a one-sentence order. Id.

After failing to obtain relief through state habeas proceedings, Williams filed

a federal habeas petition in federal district court. Id. The district court “applied

AEDPA’s deferential standard of review for claims previously adjudicated on the

merits and denied relief.” Id. The Ninth Circuit recognized that “[i]t has long been

the practice of federal habeas courts to ‘look through’ summary denials of claims

by state appellate courts and review instead the last reasoned state-court decision.”

Williams v. Cavazos, 646 F.3d 626, 635 (9th Cir. 2011) (citing Ylst, 501 U.S. 797;

Kennedy v. Lockyer, 379 F.3d 1041, 1052 (9th Cir. 2004)) rev’d on other grounds

sub nom. Johnson, 133 S. Ct. 1088. As such, the Ninth Circuit found, based on the

decision of the California Court of Appeal, that the Sixth Amendment violation

had not been decided by the state court. Id. at 638. Therefore, the Ninth Circuit

reviewed the Sixth Amendment issue de novo, agreeing with Williams that the trial

court violated her right to a fair trial by dismissing the juror. Id. at 642.

The Supreme Court approved of the Ninth Circuit’s approach of looking

through the summary denial by the California Supreme Court to “the last reasoned


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state-court decision to address” the juror’s dismissal, Johnson, 133 S. Ct at 1094

n.1, but found that while the California Court of Appeal decision had not explicitly

addressed the constitutional issue, Williams had not overcome the presumption that

it had been considered by the court, id. at 1095-96. Importantly, as the Ninth

Circuit had done, the Supreme Court looked through the summary decision to the

last-reasoned decision. Id. at 1097-99 (“[T]he Ninth Circuit erred by finding that

the California Court of Appeal overlooked Williams’ Sixth Amendment claim.”).3

Therefore, Johnson reaffirmed that in applying federal habeas standards, including

those introduced in AEDPA, the appropriate state court decision to review is the

last reasoned state court decision.

The case the panel relies on for its view that an unexplained summary

opinion can encompass every hypothetical reasoning, Harrington v. Richter, 131 S.

Ct. 770 (2011), does not support the panel’s view. Unlike Ylst and Johnson, which

each had a reasoned opinion to consult, the only state court opinion regarding the

constitutional claim at issue in Harrington was an unexplained summary opinion.

Id. at 784. Harrington holds that in such a case, the unexplained order is still a

decision “adjudicated on the merits,” such that the strictures of AEDPA review

3 This approach was also taken in Sears v. Upton, 561 U.S. 945 (2010). In Sears, both the majority and dissent looked through a summary denial by the Georgia Supreme Court to analyze the reasoning used by the decision of the Superior Court. Id. at 953 (considering the “two errors in the state court’s analysis of Sears’ Sixth Amendment claim”); id. at 957 (Scalia, J. dissenting).


11

apply. Id. Harrington, however, notes that the presumption that there has been

adjudication on the merits can be overcome. Id. at 785 (citing Ylst, 501 U.S. at

803). The portion of Ylst cited by Harrington explains exactly what that

presumption is: “Where there has been one reasoned state judgment rejecting a

federal claim, later unexplained orders upholding that judgment or rejecting the

same claim rest upon the same ground.” Ylst, 501 U.S. at 803. Therefore,

Harrington recognized that when a reasoned decision exists, it should be reviewed,

as it is presumed that the later unexplained decision rests on the same ground.

Considering what the Supreme Court of Georgia could have reasonably

concluded, instead of what the Superior Court did conclude, is not an issue of

semantics. The view of the panel of what the Georgia Supreme Court could have

reasonably concluded is an improper post hoc insertion of the panel’s own view

that goes far beyond the reasoning of the Superior Court.

While the panel viewed the mitigation evidence as “a double-edged sword,”

Opinion at 14-15, the Superior Court did not reject it on this basis, Doc.18-4 at 21-

23. Specifically, the panel dismissed the prejudicial effect of failing to introduce

mitigating testimony of Wilson’s teachers and social service workers on the

grounds that the testimony would have been undermined by evidence that it

believed would also have come in. Opinion at 15. As detailed in briefing,

however, the Superior Court rejected this evidence for a wholly different reason,


12

finding that it would not have been admissible as speculative or hearsay.

Appellant’s Br. at 47-50.

By considering how a state court could have rejected Wilson’s habeas claim

instead of how the state court actually rejected the claim, the panel was able

completely to avoid consideration of the merits of Wilson’s argument: that it was

unreasonable to conclude that the failure to introduce mitigation evidence was not

prejudicial because of a mistaken belief that it was inadmissible.

II. The Panel’s Conclusion That Mitigation Testimony of Teachers and Social Service Workers Was a Double-Edged Sword Is Not Reasonable

Aside from improperly importing a rationale not relied upon by the Superior

Court, the panel’s conclusion that new mitigation evidence from teachers and

social service workers “presented a ‘double-edged sword,’” Opinion at 14 (quoting

Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1324 (11th Cir. 2013) (en banc)),

and “would have been undermined by other new evidence that ‘almost certainly

would have come in with [the new lay testimony],’” id. at 15 (quoting Wong v.

Belmontes, 558 U.S. 15, 20 (2009)), is not a reasonable conclusion in light of the

evidence presented to the jury.

The panel reasoned that mitigation testimony of Wilson’s teachers would

have ushered in “school records [that] stated that Wilson had an ‘I don’t care

attitude,’ and that he was physically and verbally aggressive to teachers and

students, lacked self-control, and blamed others for his misconduct.” Id. But the


13

panel failed to acknowledge that this very evidence was already put in front of the

jury and, as a result of trial counsel’s incompetence, stood unrebutted. Dr.

Kohanski testified generally at trial about Wilson’s school records, opening the

door to them, regardless of whether the teachers testified. See Doc.10-5 at 100.

Moreover, the jury heard about Wilson’s negative character traits through Dr.

Kohanski—including that Wilson displayed “aggressive” and “inappropriate”

behavior in elementary school, prompting a request for a psychological evaluation,

and had “difficulty staying on task,” id. at 101—and through the State’s twenty-

two sentencing phase witnesses who testified at length about Wilson’s juvenile

criminal history and gang affiliation, see Opinion at 5-7. Therefore, any evidence

of Wilson’s “aggressive” behavior and “lack[] [of] self-control” that the panel

claims would have come in had Wilson’s teachers testified, was already before the

jury, but without mitigating evidence to counteract it. Id. at 15.4

In further support of its “double-edged sword” conclusion, the panel

reasoned that “the lay witnesses’ testimony that Wilson was physically abused and

neglected would have been undermined by . . . school and medical records that

4 Even if trial counsel might have uncovered some negative evidence that would not otherwise have come in during the sentencing phase, “[c]ompetent counsel should have been able to turn some of the adverse evidence into a positive” in support of mitigation, which “might well have helped the jury understand” Wilson. Sears, 561 U.S. at 951; see also Porter v. McCollum, 558 U.S. 30, 43-44 (2009) (It was unreasonable to reject evidence of military service that included that petitioner had AWOL several times, where “[t]he evidence that he was AWOL is consistent with” the mitigation theory in the case).


14

described Wilson as ‘healthy,’ ‘clean,’ ‘well dressed,’ ‘well developed,’ and ‘well

nourished.’” Opinion at 15-16. As noted above, Dr. Kohanski relied upon these

records for her testimony and thus the door was already open to them. See Doc.10-

5 at 100. The panel further found that mitigation testimony from social service

workers would have opened the door to “[a] report from the Department of Family

and Children Services recommend[ing] that Wilson remain in his mother’s care,”

which “a representative from the Department testified” would not have been made

“if the home had been unsafe or Wilson had been deprived of food or necessities.”

Opinion at 15. Simply because one DFCS record showed, at one point in time, a

recommendation that Wilson remain in his mother’s care does not undercut the

mountain of consistent evidence within those same records—not requested by trial

counsel—that demonstrated he endured a deprived and neglectful upbringing.5 For

example, the proffered habeas evidence included a “Child Abuse and Neglect

Report” from DFCS that indicated “Maltreatment.” Doc.12-16 at 48; see also id.

at 35 (“Child at risk when in home.”). In fact, there was a recommendation by the

Juvenile Court that Wilson be placed in foster care, but DFCS had no foster home

5 See Doc.12-16 at 10 (“Child told Doris mother does not meet needs in way of clothing, shoes, food.”); id. at 12 (“Child sometimes alone with [Cox’s] boyfriend—says boyfriend drinks . . . & had hit him.”); id. at 14 (“Receive[d] report of child neglect on Ms. Cox.”); id. at 35 (“Child’s mother is not adequately supervising child . . . .”); id. at 37 (“[Cox] is ineffective in providing a secure, stable home with appropriate care for Marion.”); id. at 40 (“Child ran away again & claims he does not have basic needs of food, shelter, supervision.”).


15

in which to place him. Doc.12-7 at 74-75; see also Doc.12-9 at 53.

The mitigation evidence rejected by the panel, far from being a double-

edged sword, tells a consistent story that when given the proper structure, Wilson

was able to overcome his upbringing, but that structure was consistently taken

from him. As indicated by his early release from the YDC, Mr. Wilson “responded

well to structure.” Doc.12-8 at 6-9. That is why lack of supervision by those

charged with his care was so devastating. Id. at 12-14. Had Wilson received that

supervision, he could have been steered in the right direction. Id. at 14 (“There

were just too many indicators in there that given the proper supervision, he was

trying to make something of himself . . . .”); id. at 80 (“[I]f he could just get some

structure and would settle down, he could do all right.”); see also id. at 122-23.6

With these insights, the jury would have understood that Wilson was struggling to

break away from a devastating past, and just needed help to complete that break.

CONCLUSION

For the foregoing reasons, Mr. Wilson requests that the panel grant

Further, Mr. Wilson urges the Court to convene en banc to consider the panel

opinion’s unreasonable analysis and disregard for Supreme Court precedent.

6 This is consistent with the observations of other witnesses that Wilson flourished in structured environments. See, e.g., Doc.12-10 at 81 (Wilson “did very well” when living with his aunt, where there were “rules to follow and responsibilities to fulfill.”); Doc.12-9 at 39-40 (Wilson “showed great academic potential when given the appropriate amount of attention, supervision and discipline”); id. at 20 (Wilson “had the potential to do tremendous things if he had had . . . support”).




UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303

John Ley Clerk of Court

December 15, 2014

For rules and forms visit www.ca11.uscourts.gov

MEMORANDUM TO COUNSEL OR PARTIES Appeal Number: 14-10681-P Case Style: Marion Wilson, Jr. v. Warden District Court Docket No: 5:10-cv-00489-MTT This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.

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Case: 14-10681 Date Filed: 12/15/2014 Page: 1 of 1 Case: 14-10681 Date Filed: 01/05/2015 Page: 27 of 51

http://www.ca11.uscourts.gov/

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 14-10681

________________________

D.C. Docket No. 5:10-cv-00489-MTT

MARION WILSON, JR., Petitioner–Appellant, versus WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent–Appellee.

________________________

Appeal from the United States District Court for the Middle District of Georgia

________________________

(December 15, 2014)

Before ED CARNES, Chief Judge, and WILLIAM PRYOR and JORDAN, Circuit Judges. WILLIAM PRYOR, Circuit Judge:

Marion Wilson, Jr., a Georgia prisoner sentenced to death for the murder of

Donovan Corey Parks, appeals the denial of his petition for a writ of habeas

corpus. Wilson argues that he was deprived of a fair trial because his counsel


2

provided ineffective assistance during the penalty phase of his trial. In state

postconviction proceedings, Wilson argued that his trial counsel were

constitutionally ineffective because they failed to discover and introduce mitigating

evidence. The state trial court ruled that Wilson’s claim of ineffective assistance of

counsel failed, and the Supreme Court of Georgia declined to review that decision.

Because the Supreme Court of Georgia could have reasonably concluded that

counsel provided Wilson effective assistance, we affirm the denial of Wilson’s

petition for a writ of habeas corpus.

I. BACKGROUND

We divide our discussion of the background in two parts. First, we discuss

the facts of Parks’s murder and the evidence presented at Wilson’s trial. Second,

we discuss the additional evidence presented during Wilson’s state habeas

proceeding.

A. Wilson is Convicted of Malice Murder and Sentenced to Death.

In 1996, Marion Wilson, Jr. and Robert Earl Butts killed Donovan Parks in

Milledgeville, Georgia. Wilson v. State, 525 S.E.2d 339, 343 (Ga. 1999). Wilson

and Butts approached Parks in a Wal-Mart parking lot to ask for a ride. Id. Wilson,

Butts, and Parks then entered Parks’s automobile. Id. A few minutes later, Parks’s

dead body was found nearby on a residential street. Id. Parks’s clothing was

saturated with blood, and he had a “gaping” hole in the back of his head. His skull


3

was filled with metal shotgun pellets and a spent shotgun shell, which suggested

that he was shot at close range.

After officers arrested Wilson, he told the officers that after Parks got in the

automobile, Butts pulled out a sawed-off shotgun and ordered Parks to drive

around. Id. According to Wilson, Butts later told Parks to exit the automobile and

lie on the ground, after which Butts shot Parks in the back of the head. Id. Wilson

and Butts drove Parks’s automobile to Atlanta in an attempt to locate a “chop

shop” to dispose of the automobile. Id. They were unable to find a “chop shop” so

they purchased gasoline cans, drove to Macon, and burned the automobile. Id.

Police later searched Wilson’s residence and found a “sawed-off shotgun loaded

with the type of ammunition used to kill Parks” and notebooks filled with

handwritten gang creeds and symbols. Id.

At trial, Wilson was represented by two appointed attorneys, Thomas

O’Donnell Jr., who served as lead counsel, and Jon Philip Carr. Wilson v.

Humphrey, No. 5:10-CV-489 (MTT), 2013 WL 6795024, at *10 (M.D. Ga. Dec.

19, 2013). They argued that Wilson was “mere[ly] presen[t]” during Butts’s

crimes, id. at *34, but the jury convicted Wilson “of malice murder, felony murder,

armed robbery, hijacking a motor vehicle, possession of a firearm during the

commission of a crime, and possession of a sawed-off shotgun,” id. at *2.


4

During the penalty phase, defense counsel argued that the jury should not

sentence Wilson to death because there was residual doubt about his guilt. Id. at

*16. They presented evidence that Butts gave inconsistent statements to the police

and that Butts confessed to three other inmates that he was the triggerman. Trial

counsel again tried to convince the jury that Wilson was “mere[ly] presen[t]”

during the crimes.

Trial counsel introduced testimony from Wilson’s mother, Charlene Cox.

She testified that Wilson had a difficult childhood and did not deserve to die even

though he had a history of criminality. She explained that Wilson’s father played

no role in Wilson’s upbringing, that she supported Wilson by working low-wage

jobs, and that Wilson had an 18-month-old daughter.

Trial counsel also introduced testimony from Dr. Renee Kohanski, a forensic

psychiatrist. Id. at *20. Kohanski relied on the records defense counsel requested

from agencies, schools, and medical facilities, and interviewed Wilson to create a

“cursory” social history, but she did not conduct an independent investigation of

Wilson’s background. Id. at *20–21. Kohanski testified that Wilson had a difficult,

sickly, and violent childhood. She explained that Wilson was so aggressive as a

child that his elementary school performed a psychological assessment of him. Id.

at *25. The assessment found that Wilson had difficulty staying on task, a poor

self-image, and an “excessive maternal dependence.” Id. Kohanski told the jury


5

that school officials also requested a medical evaluation because they suspected

that Wilson suffered from an attention deficit disorder, but testing was never

performed. Id. She testified that Wilson had no parental support or male role

model, and that, by age 9 or 10, he fended for himself on the streets and joined a

gang as a substitute for a family. Id. Kohanski told the jury that Cox’s boyfriends

“came and went” and frequently used drugs. Id. Kohanski testified about one “not

. . . uncommon event” in which six- or seven-year-old Wilson witnessed Cox’s

“common law” husband hold a gun to Cox’s head. Id.

On cross-examination, both Cox and Kohanski testified about unfavorable

background evidence. Cox admitted that Wilson was incarcerated for every day of

his daughter’s life, id. at *26, and that Cox had difficulty raising Wilson and

sometimes needed police assistance to control Wilson. Kohanski told the jury that

Wilson is of average intelligence and suffers from no known brain damage, but

that he was in two car accidents as a child and she “would have been interested to

see [brain imaging scans from] that time” to look for brain damage. She also

testified that, regardless of any possible brain damage, Wilson knew right from

wrong at the time of the murder.

The prosecution then presented evidence of Wilson’s extensive criminal

history. The jury heard that, from the age of 12 years, Wilson was “either out

committing crimes or . . . incarcerated somewhere.” Id. at *22. The jury heard that


6

Wilson had been charged with first degree arson, criminal trespass, and possession

of crack cocaine with intent to distribute, and that in a period of eleven weeks

Wilson was charged with ten misdemeanor offenses. Id. at *22–24. The jury heard

that, as a 15-year-old, Wilson shot a stranger, Jose Valle, in the buttocks because

he “wanted to see what it felt like to shoot somebody,” and that Wilson sold crack

cocaine to Robert Underwood and then shot him five times and “casually walked

off.” Id. at *22–23. The jury also heard testimony that Wilson was charged with

cruelty to animals after he “shot and killed a small dog for no apparent reason.” Id.

at *23.

The prosecution also presented evidence of Wilson’s violence and gang

activity. The jury heard that Wilson threatened a neighbor, saying “I’ll blow . . .

that old bitch’s head off”; Wilson committed unprovoked attacks on his

schoolmates; and Wilson attacked one of the employees during his incarceration at

Claxton Regional Youth Development Center. Id. at *22–23. The jury heard details

of an incident in which a “belligerent” Wilson and five others were shouting at

students in a parking lot at Georgia College. Id. at *23. When police arrived,

Wilson rushed one of the officers and had to be subdued with pepper spray when

he attempted to grab the officer’s gun. Id. The jury heard portions of Wilson’s

post-arrest interrogation in which he confessed that he was the “God damn chief


7

enforcer” of the Milledgeville FOLKS gang, a rank he achieved by “fighting and

stuff like that.” Id. at *24.

At the close of testimony, the trial court instructed the jury to consider all of

the evidence from both the guilt and penalty phases of trial. After deliberating for

less than two hours, the jury sentenced Wilson to death for the crime of malice

murder. Id. at *26. The Supreme Court of Georgia affirmed Wilson’s conviction

and sentence on direct appeal. Id. at *2.

B. Wilson Petitions for a Writ of Habeas Corpus and Introduces Mitigation Evidence that His Trial Counsel Failed to Present.

Wilson filed a petition for a writ of habeas corpus in a state court, in which

he argued that his trial counsel had been ineffective because they failed to

investigate his background thoroughly and to present adequate mitigation evidence

at his sentencing. Id. at *13; see Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984). Wilson argued that effective counsel would have interviewed

teachers, social workers, and relatives to find mitigation evidence from Wilson’s

childhood. Wilson, 2013 WL 6795024, at *13. He argued that sufficient counsel

would have discovered the names of potential witnesses in the records that his trial

counsel possessed but never read. Id. at *15.

At an evidentiary hearing, Wilson’s trial counsel testified that they were

“confus[ed]” about who was responsible for investigating Wilson’s background.

Id. at *12. Lead counsel O’Donnell testified that he told Carr and an investigator,


8

William Thrasher, to “go out and investigate [Wilson’s] background.” Id. at *17.

But Carr testified that he “was not involved in as much of the mitigation stage”

because he believed O’Donnell was responsible for the investigation. Id. at *11.

Thrasher testified that he was not “directed to conduct [an] investigation into . . .

Wilson’s life history for mitigating information.” Id. at *12.

Wilson introduced evidence that the social services, school, and medical

records in the possession of Wilson’s trial counsel contained mitigating

information about Wilson’s childhood homes and physical abuse by parental

figures, and names of potential mitigation witnesses. Id. at *17–18. Trial counsel

failed to explore any of the potential leads or witnesses found in the records. Id. at

*17. Trial counsel testified that they relied on Kohanski to read the records and

construct a social history of Wilson’s life. They also testified that they were aware

of the information in Wilson’s records, but they made the strategic decision to

focus on residual doubt instead of bringing in that evidence because it “would

basically convince the jury that [Wilson] probably was the trigger man.”

Wilson introduced 127 exhibits and 9 witnesses that were either directly

from or referenced in the records, or could have been discovered through

investigation of references in the records. Id. at *26. Wilson introduced lay

testimony from his former teachers, family members, friends, and social workers.


9

Id. at *26–29. He also introduced expert testimony from neuropsychologist Dr.

Jorge Herrera and Kohanski. Id. at *29–30.

Wilson argued that the lay testimony could have been used to explain

Wilson’s disruptive childhood behavior and portray Wilson as someone who never

stood a chance. Teachers testified that Wilson was a “tender and good” boy who

“had a lot of potential” and “loved being hugged,” and that if Wilson had “been

afforded appropriate treatment, attention, guidance, supervision[,] and discipline in

his early years, there is a good chance” he would not be on death row. Family

members and friends testified that some of Wilson’s childhood homes lacked

running water and electricity and were littered with containers full of urine. Id. at

*26. They also testified that Cox’s live-in boyfriends “slapp[ed],” “punch[ed],” and

“once pulled a knife on” Wilson and that, for a period of a few months, Wilson and

Cox lived with Cox’s father, who beat Wilson with a belt. Id. at *29. Social

workers testified that Wilson’s young life included every “risk factor” they could

think of, id. at *28, and that Wilson responded well to structure but his childhood

was entirely unstructured, id. at *27.

Wilson argued that the expert testimony could have been used to explain

Wilson’s poor judgment skills and lack of impulse control. Herrera testified that

his neuropsychological testing found that Wilson had “mild to severe impairments

in brain function[], with severe impairment localized in the frontal lobes.” Id. at


10

*30. Herrera opined that “Wilson’s association with [Butts] on the night of the

crime and his failure to intervene at the time is consistent with the concrete

thinking and judgment problems associated” with Wilson’s brain injuries.

Kohanski confirmed Herrera’s assessment and testified that Herrera’s testing

should have been performed before Wilson’s trial. Id. at *30. Kohanski testified

that Wilson’s frontal lobe injuries “indicate[] that [he] . . . is a highly suggestible

individual, easily led by others in certain situations.”

The state trial court ruled that Wilson did not receive ineffective assistance

of counsel. The state trial court ruled that trial counsel’s performance was not

deficient and, alternatively, that Wilson suffered no prejudice. Wilson, 2013 WL

6795024, at *31. Wilson filed an application for certificate of probable cause to

appeal the denial of his petition, which the Supreme Court of Georgia summarily

denied.

Wilson petitioned for a writ of habeas corpus in the district court, which

denied him relief. The district court ruled that the decision of the state trial court as

to prejudice did not involve an unreasonable application of clearly established

federal law and that the material findings of fact were reasonable. Id. at *38. The

district court granted Wilson a certificate of appealability.


11

II. STANDARD OF REVIEW

We review de novo the denial of a petition for a writ of habeas corpus.

Fotopoulos v. Sec’y, Dep’t of Corr., 516 F.3d 1229, 1232 (11th Cir. 2008). “Under

[the Antiterrorism and Effective Death Penalty Act of 1996], a federal court may

not grant a habeas corpus application ‘with respect to any claim that was

adjudicated on the merits in State court proceedings,’ 28 U.S.C. § 2254(d), unless

the state court’s decision ‘was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States,’ § 2254(d)(1).” Johnson v. Upton, 615 F.3d 1318, 1329 (11th Cir.

2010) (quoting Berghuis v. Thompkins, 560 U.S. , 130 S. Ct. 2250, 2259 (2010)).

“[T]his standard [is] ‘a highly deferential’ one that ‘demands that state-court

decisions be given the benefit of the doubt.’” Id. (quoting Renico v. Lett, 559 U.S.

766, 130 S. Ct. 1855, 1862 (2010)). The decision of a state court is “contrary to”

federal law only if it “contradicts the United States Supreme Court on a settled

question of law or holds differently than did that Court on a set of materially

indistinguishable facts.” Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331,

1355 (11th Cir. 2009) (internal quotation marks and citation omitted). The decision

of a state is an “unreasonable application” of federal law if it “identifies the correct

governing legal principle as articulated by the United States Supreme Court, but

unreasonably applies that principle to the facts of the petitioner’s case,


12

unreasonably extends the principle to a new context where it should not apply, or

unreasonably refuses to extend it to a new context where it should apply.” Id. “The

question under [the Act] is not whether a federal court believes the state court’s

determination was correct but whether that determination was unreasonable—a

substantially higher threshold.” Id. (internal quotation marks and citation omitted).

“[A]n unreasonable application of federal law is different from an incorrect

application of federal law.” Harrington v. Richter, 562 U.S. 86, __, 131 S. Ct. 770,

785 (2011) (internal quotation marks and citation omitted) (emphasis omitted). “To

obtain habeas relief ‘a state prisoner must show that the state court’s ruling on the

claim being presented in the federal court was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.’” Reese v. Sec’y, Fla. Dep’t of Corr., 675

F.3d 1277, 1286 (11th Cir. 2012) (quoting Harrington, 131 S. Ct. at 786–87).

When we evaluate a petition of a state prisoner, we “‘must determine what

arguments or theories supported or, [if none were stated], could have supported[]

the state court’s decision; and then [we] must ask whether it is possible that

fairminded jurists could disagree that those arguments or theories are inconsistent

with the holding in a prior decision of [the Supreme Court].’” Evans v. Sec’y,

Dep’t of Corr., 703 F.3d 1316, 1326 (11th Cir. 2013) (en banc) (alterations in

original) (quoting Reese, 675 F.3d at 1286–87).


13

III. DISCUSSION

As an initial matter, the one-line decision of the Supreme Court of Georgia

denying Wilson’s certificate of probable cause is the relevant state-court decision

for our review because it is the final decision “on the merits.” Newland v. Hall, 527

F.3d 1162, 1199 (11th Cir. 2008); see also Jones v. GDPC Warden, 753 F.3d 1171,

1182 (11th Cir. 2014). Instead of deferring to the reasoning of the state trial court,

we ask whether there was any “reasonable basis for the [Supreme Court of

Georgia] to deny relief.” Harrington, 131 S. Ct. at 784.

Wilson argues that his trial counsel were ineffective because they failed to

investigate his background and present mitigation evidence at his sentencing. To

obtain relief, Wilson must establish both that his trial counsel’s “performance was

deficient, and that the deficiency prejudiced [his] defense.” Wiggins v. Smith, 539

U.S. 510, 521, 123 S. Ct. 2527, 2529 (2003). Unless he establishes both

requirements, “it cannot be said that the conviction or death sentence resulted from

a breakdown in the adversary process that renders the result unreliable.”

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. And “[i]f it is easier to dispose of

an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that

course should be followed.” Id. at 697, 104 S. Ct. at 2069.

To establish prejudice, Wilson had to prove “that [his] counsel’s errors were

so serious as to deprive [him] of a fair trial.” Id. at 687, 104 S. Ct. at 2064. Wilson


14

challenged his trial counsel’s performance during the penalty phase of his trial, so

he had to establish that “there is a reasonable probability that, absent the errors, the

sentencer—including an appellate court, to the extent it independently reweighs the

evidence—would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” Id. at 695, 104 S. Ct. at 2069. To decide

whether there is a reasonable probability of a different result, “we consider ‘the

totality of the available mitigation evidence—both that adduced at trial, and the

evidence adduced in the habeas proceeding’—and ‘reweig[h] it against the

evidence in aggravation.’” Porter v. McCollum, 558 U.S. 30, 41, 130 S. Ct. 447,

453–54 (2009) (quoting Williams v. Taylor, 529 U.S. 362, 397–98, 120 S. Ct.

1495, 1515 (2000)) (alteration in original).

The Supreme Court of Georgia could have reasonably concluded that

Wilson failed to establish that he was prejudiced. The Supreme Court of Georgia

could have reasonably concluded that Wilson’s new evidence would not have

changed the overall mix of evidence at his trial. His new evidence presented a

“double-edged sword,” Evans, 703 F.3d at 1324, and was “largely cumulative” of

evidence trial counsel presented to the jury, Holsey v. Warden, Ga. Diag. Prison,

694 F.3d 1230, 1260–61 (11th Cir. 2012).

The Supreme Court of Georgia could have reasonably concluded that the

balance of the evidence at Wilson’s trial would have been unaffected by the new


15

lay testimony. The teachers’ testimony might have “humanized” Wilson, and other

lay witnesses’ testimony might have offered more detailed accounts of Wilson’s

home life, but that testimony was a “double-edged sword.” Evans, 703 F.3d at

1324. The teachers’ “mitigation” testimony would have also revealed that Wilson

was “disruptive” in school, and the social service workers’ “mitigation” testimony

would have added that one of the investigations into Wilson’s home life was

terminated prematurely because Wilson was incarcerated.

The lay witness’ testimony would have been undermined by other new

evidence that “almost certainly would have come in with [the new lay testimony].”

Wong v. Belmontes, 558 U.S. 15, 20, 130 S. Ct. 383, 386 (2009). Reports in

Wilson’s school records stated that Wilson had an “‘I don’t care’ attitude,” and that

he was physically and verbally aggressive to teachers and students, lacked self-

control, and blamed others for his misconduct. A report from the Department of

Family and Children Services recommended that Wilson remain in his mother’s

care, and a representative from the Department testified that the Department would

“certainly not” have made that recommendation if the home had been unsafe or

Wilson had been deprived of food or necessities. And the lay witnesses’ testimony

that Wilson was physically abused and neglected would have been undermined by

the witnesses’ uncertainty, Wilson’s repeated denials that he was physically abused


16

as a child and school and medical records that described Wilson as “healthy,”

“clean,” “well dressed,” “well developed,” and “well nourished.”


balance of the evidence at Wilson’s trial also would have been unaffected by the

new expert testimony. Herrera assessed Wilson using his own interpretive

standards for the neuropsychological tests he administered on Wilson, instead of

accepted, authoritative standards. Herrera testified that Wilson’s test scores for

attention, ability to focus, distractability, and impulsiveness were considered

“normal” under the accepted, authoritative standards. Because Herrera

recommended against neurological imaging, his conclusion that Wilson had frontal

lobe damage was based on only Herrera’s unique interpretation of the tests. And

the state court could have ruled that Kohanski’s new conclusions were unreliable

because they were based on Herrera’s unreliable results.

Herrera’s and Kohanski’s expert testimony conflicted with other evidence.

They testified that a person with Wilson’s test results would be susceptible to

suggestion and more of a follower than a leader. But other evidence established

that Wilson had risen to the rank of “God damn chief enforcer” of the

Milledgeville FOLKS gang and was the “clear leader of the group” during the

incident at Georgia College.


17

The Supreme Court of Georgia could have also reasonably concluded that

Wilson’s new evidence was “largely cumulative” of the evidence trial counsel

presented to the jury. Holsey, 694 F.3d at 1260–61. The evidence presented at trial

and the new evidence “tell the same story,” id. at 1267, of an unhealthy child, who

came from an unstable home and received no parental supervision. The jury heard

that, from the age of 9 or 10, Wilson lived on the streets in a difficult

neighborhood. His father figures “came and went” and frequently used drugs. One

such father figure held a gun to Wilson’s mother’s head in view of Wilson. Wilson

struggled with his identity and joined a gang as a substitute for family. The jury

also heard humanizing characteristics, such as Cox’s plea to spare Wilson’s life for

the sake of his 18-month-old daughter, and that Wilson’s biological father had no

role in Wilson’s life. And Kohanski testified that she would have liked to see

images of Wilson’s brain to confirm that he did not have a brain injury.


new evidence “tells a more detailed version of the same story told at trial,” id. at

1260–61. Wilson’s new evidence revealed more details of his difficult background

and included additional humanizing stories and speculation about brain damage.

The only new revelation at Wilson’s evidentiary hearing was that the men in

Wilson’s life abused him. But the evidence of this abuse “was relatively limited in

scope and . . . [not] descripti[ve].” Id. at 1282; cf. Cooper v. Sec’y of Dep’t of


18

Corr., 646 F.3d 1328, 1337, 1349 (11th Cir. 2011). Reasonable jurists could rule

that this evidence was “largely cumulative” of the other evidence of Wilson’s

neglectful childhood. Holsey, 694 F.3d at 1260–61.

The Supreme Court of Georgia could have looked at the overall mix of

evidence, aggravating and mitigating, old and new, and reasonably determined that

a jury would have still sentenced Wilson to death. The jury at Wilson’s trial heard a

large amount of graphic, aggravating evidence, and it would be reasonable to

conclude that Wilson’s new evidence was as hurtful as it was helpful, and largely

cumulative of the evidence presented at trial. We cannot say that the decision of

the Supreme Court of Georgia to deny Wilson’s petition was “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1).

IV. CONCLUSION

We AFFIRM the denial of Wilson’s petition for a writ of habeas corpus.


19

ED CARNES, Chief Judge, concurring:

I join all of the Court’s opinion but write separately to emphasize how

heavily Wilson’s criminal history weighs on the aggravating side of the sentencing

scale. The weight on that side of the scale is an important factor that must be taken

into account in determining whether the failure to present all available mitigating

circumstance evidence was prejudicial. See Bobby v. Van Hook, 558 U.S. 4, 11–

13, 130 S. Ct. 13, 19–20 (2009); Reed v. Sec’y, Fla. Dep’t. of Corr., 593 F.3d

1217, 1240–41 (11th Cir. 2010); Hall v. Head, 310 F.3d 683, 705–06 (11th Cir.

2002).

There is nothing inaccurate in the Court’s two-paragraph summary of the

evidence that the jury heard about Wilson’s history of criminal behavior. Still, the

district court’s more detailed and chronological recounting of that history, drawn

from the evidence presented to the jury at sentencing, is worth quoting. It shows

how continuously and relentlessly anti-social and violent Wilson was, beginning

with his commission of arson when he was 12 years old and culminating in capital

murder seven years later:

The State’s 22 witnesses in the sentencing phase of Wilson’s

trial testified regarding Wilson’s lengthy criminal history and gang

affiliation. The jury heard Wilson [D.O.B. July 29, 1976] started

committing serious felonies when he was twelve and since then was

“either out committing crimes or . . . incarcerated somewhere.”


20

On January 31, 1989, twelve-year-old Wilson and two other

boys started a fire in a vacant duplex apartment in Glynn County. The

residents of the attached unit were home at the time. All three boys

were charged with first degree arson and criminal trespass.

John J. Schrier testified he and his mother lived next door to

Wilson in Glynn County in 1989. After Schrier’s mother, an elderly

heart patient, complained that [twelve- or thirteen-year-old] Wilson

was harassing her and her dogs, Schrier asked Wilson to leave his

mother and her dogs alone. Wilson responded, “I’ll blow you and that

old bitch’s head off.”

Former McIntosh County Sheriff’s Deputy Robert Wayne Hoyt

testified that on December 16, 1991, fifteen-year-old Wilson shot Jose

Luis Valle, a Mexican migrant worker. Brian Keith Glover testified

he and his two cousins were with Wilson the night he shot Valle.

According to Glover, they were standing in the parking lot of a

convenience store when Valle, a stranger to them all, walked past and

into the store. Wilson announced he was going to rob Valle and that

he “wanted to see what it felt like to shoot somebody.” Wilson, who

had a pistol, approached Valle as he left the store. When Valle raised

his arms in the air and turned to run, Wilson shot him in the buttocks.

Glover testified that approximately one week after the incident,

Wilson, who was again carrying a gun, threatened him because of the

statement Glover gave law enforcement about Valle’s shooting.

Glover’s cousin, Oscar Woods, corroborated Glover’s story. The

charges against Wilson were dead-docketed because the authorities

were unable to locate Valle after he was discharged from the hospital.


21

After Wilson was charged with shooting Valle, he was

incarcerated at the Claxton Regional Youth Development Center

(“Claxton RYDC”), where he attacked Steve Nesmith, a youth

development worker. Nesmith testified Wilson assaulted him, kneed

him in the groin, grabbed his legs, and shoved him into a steel door.

After a struggle, another worker and a detainee helped Nesmith

subdue Wilson. Nesmith testified that during the two years he worked

at the Claxton RYDC, Wilson was the only detainee who ever

attacked him.

Daniel Rowe testified he attended school with Wilson. In

January 1993, [sixteen-year-old] Wilson and another boy attacked him

at school as he was drinking from a water fountain. Later the same

day, the two again attacked him.

Corporal Craig Brown of the Glynn County Police Department

testified that on June 9, 1993 [sixteen-year-old] Wilson shot and killed

a small dog for no apparent reason. Juvenile Court Administrator

Phillip Corbitt testified Wilson was charged with cruelty to animals

and, at a June 25, 1993 arraignment, admitted shooting the dog.

On June 10, 1993, the day after he was charged with shooting

the dog, Wilson was charged with possession of crack cocaine with

intent to distribute.

A little more than one month later [and three days shy of his

seventeenth birthday], Wilson shot Robert Loy Underwood.

Underwood testified that on July 26, 1993 he drove into a

neighborhood to look for day labor. While there, he purchased crack

cocaine from two boys. As he drove away, something struck him in

the head. When he turned to see what had hit him, he saw Wilson,


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who was pointing a pistol at him. Wilson then shot five times into the

cab of Underwood’s truck. One bullet struck Underwood in the head;

another traveled through his arm and lung before lodging in his spine.

Underwood said Wilson then “turned around and just casually walked

off.” Underwood was hospitalized for six days. Wilson was charged

with the shooting, and Underwood identified Wilson as the shooter

during the juvenile proceedings.

Detective Ted McDonald with the Glynn County Police

Department testified Wilson gave a statement in which he claimed he

acted in self-defense when he shot Underwood. However, according

to McDonald, Underwood’s wounds were not consistent with

Wilson’s claims of self-defense. Juvenile Court Administrator Corbitt

testified Wilson admitted shooting Underwood during a juvenile court

hearing.

Sergeant Brandon Lee, an officer with the Georgia College

Department of Public Safety in Milledgeville, testified that on May

25, 1995, not quite two months after Wilson’s release from the

Milledgeville YDC, he found [eighteen-year-old] Wilson and five

others in a Georgia College parking lot shouting at college students.

When Lee asked them to leave the campus, Wilson, whom Lee

described as the obvious leader of the group, became belligerent. The

group then moved to another parking lot two blocks away where they

got involved in another verbal confrontation with students. When

campus police arrived and again asked the group to leave the campus,

Wilson began shouting “gang language” in Lee’s face and refused to

leave. As Lee tried to place Wilson under arrest, Wilson charged

another officer and attempted to grab the officer’s handgun. A


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struggle ensued, and Wilson ultimately had to be pepper sprayed.

After the confrontation, Wilson was arrested and charged with failure

to leave campus as directed by an officer and felony obstruction of an

officer. Wilson pled guilty to the charges and was banned from the

campus.

Steven Roberts, formerly a law enforcement officer with the

Georgia College Department of Public Safety, testified that on August

1, 1995, Wilson [who had just turned nineteen] was charged with

driving the wrong way on a one-way street and, because he ran when

officers approached his car, obstruction of an officer. Roberts also

testified he saw Wilson on the Georgia College campus on September

28, 1995. Knowing he had been banned from the campus, Roberts

approached [nineteen-year-old] Wilson to arrest him for trespassing.

When instructed to place his hands on the car, Wilson ran.

Maxine Blackwell, Solicitor of Baldwin County State Court,

testified Wilson had been charged with approximately ten

misdemeanor offenses during an eleven week period in 1995 and was

sentenced to serve 60 to 120 days in a detention center.

(Bracketed material added; citations to record and footnotes omitted.)

Wilson’s wholehearted commitment to antisocial and violent conduct from

the age of 12 on not only serves as a heavy weight on the aggravating side of the

scale, it also renders essentially worthless some of the newly proffered mitigating

circumstance evidence. For example, a number of Wilson’s teachers signed

affidavits, carefully crafted by his present counsel, claiming that Wilson was “a


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sweet, sweet boy with so much potential,” a “very likeable child,” who was

“creative and intelligent,” and had a “tender and good side.” One even said that

Wilson “loved being hugged.” A sweet, sensitive, tender, and hug-seeking youth

does not commit arson, kill a helpless dog, respond to a son’s plea to quit harassing

his elderly mother with a threat “to blow . . . that old bitch’s head off,” shoot a

migrant worker just because he “wanted to see what it felt like to shoot someone,”

assault a youth detention official, shoot another man in the head and just casually

walk off — all before he was old enough to vote.

Without provocation Wilson shot a human being when he was fifteen, shot a

second one when he was sixteen, and robbed and shot to death a third one when he

was nineteen. Those shootings and his other crimes belie the story that his present

counsel put forward in the affidavits from his former teachers, which are part of the

new mitigating circumstance evidence. See Bobby v. Van Hook, 558 U.S. 4, 12,

130 S.Ct. 13, 19 (2009) (“[T]he affidavits submitted by the witnesses not

interviewed shows their testimony would have added nothing of value.’).

Given Wilson’s lifelong commitment to violent crime, and his utter

indifference to human life, reasonable jurists could easily conclude, as the Georgia

Supreme Court did, that there is no reasonable probability of a different result if his

trial counsel had discovered and presented the additional mitigating circumstance

evidence that he claims they should have.


Documents

PETITION FOR REHEARING AND REHEARING EN BANC · McGahee v. Ala. Dep’t of Corrs., 560 F.3d 1252 (11th Cir. 2009) Sweet v. Sec’y, Dep’t of Corrs., 467 F.3d 1311 (11th Cir. 2006)